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Thursday, 4 April 1968


Mr CONNOR (Cunningham) - I think that the remarks of the honourable member for Mitchell (Mr Irwin) carry their own answer. The Attorney-General (Mr Bowen) is to be given due credit for at least spring cleaning the very dirty and neglected legal attic of the present Government. The Opposition welcomes the measure as being one that is long overdue. The Bill regularises the fact that for 50 years the High Court has not given a certificate for special reasons on matters affecting the inter se rights of the Commonwealth and States so that they could go on appeal to the Privy Council. To that extent a position that is already a fait accompli is being duly regularised.

The Bill carefully preserves the right of appeal from the Supreme Court of any State not involving, first, the Constitution or, secondly, the legal law or, thirdly, an application for interpretation of regulatory powers under a Federal law. If we want to be perfectionists, the only way to abolish the right of appeal completely would be by referendum, but the Bill is a substantial step along the road. The Bill is to minimise and restrict to the maximum possible, but it cannot and does not abolish the right of appeal. The State rights to appeal still remain and to that extent the stigma of colonialism remains until legislation of the Imperial Parliament removes the right of the various sovereign States of Australia - sovereign is a euphemism in this case - to allow appeals to the Judicial Committee of the Privy Council. No doubt the overwhelming presence of the former Prime Minister, Sir Robert Menzies, dominated Government opinion for many years in relation to the modification of the right of appeal to the Privy Council. He certainly had a distaste for change and the Government, following his lead, was at that time obdurate and stiff necked.

In 1930 - and I think this contrast should be made - the jurisdiction of the Privy Council extended in area over one-quarter of the globe. It covered the Australian Commonwealth, the Dominions of Canada and New Zealand, the Union of South Africa, the Irish Free State, numerous colonial territories, three protectorates, numerous groups of islands and sundry mandated territories. It extended over a total of eighty areas of the utmost diversity of race, economic development, culture and tradition. Today let us consider those which remain - and this list is subject to diminution. It is the latest list I have available to me. Of those eighty-odd countries linked to the Judicial Committee of the Privy Council with rights of appeal in 1930, there now remains only Australia and its six States, New Zealand, Ceylon, a small collection of the newly emerging Caribbean countries which now have self government, the colonies of Mauritius, the Seychelles, Fiji, British Honduras and three African protectorates. With an agreed formula of judgment - not advice - appeals also continue from Malaysia, Tanganyika and Uganda.

A lot has been said about the merits of the Judicial Committee of the Privy Council, and we pay due respect to the service it has rendered over the years. But today we live in a new era. In its former capacity to deal efficiently with appeals from so many countries of such diverse origin prior to World War II the Judicial Committee as it then functioned was a successful example of traditional British adaptation of mature constitutional machinery which suited the then constitutional development of the various component parts of the British Commonwealth. But in that .very process, and because the Committee did and has to the present day retained the forms and fiction of the past, it has not found favour in the eyes of the various states emerging into nationhood in various parts of the British Commonwealth. To those nations it smacks of colonialism and is politically unacceptable and offensive. If the system of appeal to the Privy Council gives offence to those nations as smacking of colonialism, how much more is it an affront to and inconsistent with Australia's status as a nation constituted in 1901?

The operation of the Judicial Committee has been left almost entirely in the hands of the senior judiciary of the United Kingdom, with its sittings always held in London. Thus a truly Commonwealth judiciary exercising appellate jurisdiction has never been able to develop. The quality and integrity of the Judicial Committee have never been in dispute, but the insuperable objection to its jurisdiction has been its unacceptability to even newly emerging independent States of the Commonwealth. Even the form of its decisions, in terms of advice to Her Majesty without expression of positive judgment, has been repugnant.

In 1901 the Australian Commonwealth was no more than a fledgling nation with a Constitution which was the product of compromise between the jealousies and rivalries of six sovereign States. Amendments to our Constitution by referendums have been few and tardy, but by the accumulated weight of judgments of the High Court we have achieved an amazing expansion of Commonwealth powers and legal maturity and sophistication. The High Court has during more than 60 years of functioning established itself in the national consciousness as both guardian and exponent of the Constitution and the final court of appeal for all Australians. I think it should be the objective of any Australian government that the Australian High Court and the Australian Parliament should stand in exactly the same relation to the Crown as does the Parliament of Westminster. Anything less than that is completely unacceptable to national sentiment and to the national status of Australia.

We have survived major economic crises. A former generation of Australians repelled the threat of enemy invasion, and today we stand as a nation in our own right. I quote the words of a former Prime Minister who said: 'Australia faces primary risks and must accept primary responsibilities.' We are determined to survive. We have embarked on a programme of national development and industrialisation. To add to our numbers we have launched and continued an immigration programme under which we bring in more migrants calculated as a proportion of existing population, than any other country in the world. Many of the migrants who are now fully fledged Australian citizens will welcome this measure.

Today Britain is in an entirely new sitation facing great economic problems. She is no longer prepared to continue her posture as a major world power. To people like the honourable member for Mitchell (Mr Irwin), who for reasons of tradition or sentiment object to the severance or the restriction of the right of appeal to the Privy Council, I say that Britain is realising for the first time that there may be an even more honoured place in the world in the international acceptance of the English language. Britain is learning that to rule the hearts and minds of men is more important than to govern their lands; that to have the respect of world opinion is more important than to have the power to determine the governmental and economic policies of countries subject to her dominion. It is not in the English temperament, nor does it conform with English tradition, for us to accept legal, political and economic tutelage. Our links of language, sentiment and kinship with Britain will be the stronger for the abolition of appeals to the Judicial Committee of the Privy Council.

I will now recapitulate the main objection to the continuation of the present situation. As T have said, it is inconsistent with Australia's status as a sovereign nation. It is an infringement of the sovereignty of the Australian Parliament. The Privy Council is not even the final court of appeal in Britain today. The Judicial Committee has the taint of colonialism. There have been in the past occasions when the question of rival rights of competing African tribes to the possession of places of particular solemnity, or even of idols, would in the Privy Council list have been ahead of mutters that gravely affected the economy of the Australian nation. With notable exceptions, although the right to do so exists, members of the Judicial Committee have never been drawn from the judiciary of other parts of the Commonwealth. The Committee lacks touch with local conditions and Australian national sentiment. Above all, good justice is speedy justice. By the very nature of the constitution of Judicial Committee, speedy decisions cannot be obtained from that body. In point of fact, it is possible for litigants to pass through as many as 4 or 5 inferior courts before finally their particular legal problems are considered by the Judicial Committee. The evils which are sought to be removed may by the time of hearing be irremovable. The question of expense has already been substantially covered in this debate and I will not touch on it any further. The right of appeal as it stands at present is an implied affront to the competence of the Australian High Court to deal effectively and finally with all matters of Australian litigation.

The Attorney-General in his introductory speech raised the question of reservation of this legislation for the royal assent. That brings me to a general scrutiny of certain sections of the Australian Constitution, particularly sections 58, 59 and 60. Although Australia is virtually in practice a sovereign country, we are very much restricted in legal theory. According to the wording of the Constitution, we have sovereign powers of legislation. I will say no more on that subject, out of due respect for the Crown. It is true that the Privy Council dispenses the royal prerogative of justice that has existed from time immemorial through ancient tradition. It has been gradually modified. There may be occasions when it needs to be exercised, but certainly not over a sovereign nation such as Australia. The exercise of the residual sovereignty of the Crown may have application to protectorates and Crown colonies, but should never be used in diminuation of the sovereignty of the Parliament of the Australian nation or of its national courts.







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